Karnataka High Court
State Of Karnataka vs Sri. H. Ramanjaney on 5 September, 2023
Bench: Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL REVISION PETITION NO.200 OF 2016
BETWEEN:
STATE OF KARNATAKA,
REPRESENTED BY,
THE POLICE INSPECTOR,
KARNATAKA LOKAYUKTA,
POLICE WING, CITY DIVISION,
BENGALURU-560 001.
....PETITIONER
(BY SRI. VENKATESH .S ARBATTI, SPL.PP, LOKAYUKTHA)
AND:
1. SRI. H. RAMANJANEY,
SON OF SRI. D.T. HANUMANTHARAYAPPA,
AGED ABOUT 63 YEARS,
SPECIAL DEPUTY COMMISSIONER,
BENGALURU URBAN,
RESIDING AT ADISHAKTHI APARTMENT,
NO.1, 2ND FLOOR,
IBBALURU CROSS,
BENGALURU-560 102.
2. SRI. G.S. VENKATESH BABU,
SON OF SRI. SUBBARAYAPPA,
AGED ABOUT 34 YEARS,
GANGASAGARA VILLAGE,
HONNAMANGALA POST,
PAVAGADA TALUK,
TUMAKURU DISTRICT-561 202.
2
3. SRI. NAVEEN,
SON OF SRI. PATHANNA,
AGED ABOUT 35 YEARS,
GANGASAGARA VILLAGE,
HONNAMANGALA POST,
PAVAGADA TALUK,
TUMAKURU DISTRICT-561 202.
4. SRI. GANGAPPA,
SON OF SRI. NARASIMHAPPA
AGED ABOUT 65 YEARS,
RESIDENT OF BHEEMANAKUNTE VILLAGE
POTAGANAHALLI POST,
PAVAGADA TALUK,
TUMAKURU DISTRICT-561 202.
...RESPONDENTS
(BY SRI. RAVI .B NAIK, ADVOCATE FOR
SRI. A.H. BHAGAVAN, ADVOCATE FOR R1,
SRI. A.N. RADHA KRISHNA, ADVOCATE FOR R2, R3 & R4)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE
THE ORDER DATED 09.10.2015 IN THE SPL.C.C.NO.45/2011
PASSED BY THE XXIII ADDL. CITY CIVIL AND S.J., SPECIAL
JUDGE, BANGALORE URBAN DISTRICT(C.C.H.24) AT
BANGALORE.
THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 14.08.2023,
COMING ON FOR 'PRONOUNCEMENT OF ORDER' THIS DAY,
THE COURT MADE THE FOLLOWING:
3
ORDER
This revision is filed by the State of Karnataka through
Police Inspector, Karnataka Lokayukta Police Wing City
Division, Bengaluru challenging the order dated 09.10.2015 in
Spl.C.C.No.45/2011 passed by XXIII Additional City Civil and
Sessions Judge / Special Judge, Bangalore Urban District,
whereby the learned Sessions Judge has discharged the
accused / respondents herein for the offences under Sections
7 and 8 read with Section 13(1)(d) and 13(2) of the
Prevention of Corruption Act, 1988 (hereinafter referred to as
'the Act' for short) by allowing the applications filed under
Section 227 and 239 of Criminal Procedure Code, 1973
(hereinafter referred to as 'the Code' for short).
2. For the sake of convenience, the parties herein are
referred with original ranks occupied by them before the trial
Court.
3. The brief factual matrix leading to the case are
that in 2010, accused No.1 was working as Special Deputy
Commissioner in Bangalore Urban District and was a public
servant within the meaning of Section 2(c) of the Prevention
of Corruption Act, 1988. However, the accused Nos.2 to 4 are
private persons and they have aided accused No.1. That the
complainant owned agricultural lands measuring 3 acres 11
guntas in Sy.No.23/1, 1 acre 10 guntas in Sy.No.23/2 and 33
guntas in Sy.No.26 in Tippesandra Village of Anekal Taluk. He
had submitted an application on 25.05.2010 for conversion of
the nature of the use of the land and on 26.10.2010, revenue
inspector placed a report before the Government.
Subsequently, the Tahsildar, Anekal has placed said report
before the Deputy Commissioner, Bangalore Urban District. A
letter was also addressed to the Anekal Planning Authority by
Special Deputy Commissioner calling for report and a report
came to be submitted that the said lands are within the
notified industrial area. It is the further assertion that on
14.11.2010 complainant approached accused No.1, who was
then working as Special Deputy Commissioner, Bangalore
Urban District and enquired about the process of conversion of
the land. Unknown person was present in the chamber of
accused No.1 and accused No.1 pointed out to the unknown
person to the complainant and instructed the complainant to
get a Demand Draft of Rs.2 Lakhs in favour of one Smt.Nalini.
4. When the complainant enquired with the said
unknown person, he was informed that his work would be
attended by accused No.1 only if the draft as directed was
secured. Later on, on 05.11.2010 the complainant
approached the office and an intimation was served on the
complainant calling upon him for payment of conversion
charges and he was also asked to meet accused No.1.
Thereafter, the complainant has also submitted the copies of
documents pertaining to his land. On 18.11.2010, he along
with CW4 approached accused No.1 and at that time unknown
person was with accused No.1 and the complainant was
instructed by accused No.1 to pay a sum of Rs.15,000/- to the
said unknown person and accordingly, complainant paid the
said amount. On 23.11.2010, complainant paid the conversion
charges of the lands and on 25.11.2010, he approached
accused No.1 and again accused No.1 demanded a sum of
Rs.2 Lakhs by way of demand draft. When the complainant
pleaded inability, the accused No.1 abused the complainant
and returned the file of complainant to CW10.
5. Thereafter, on 26.11.2010, the complainant
approached the Investigating Officer - CW26 who in turn,
handed over a digital voice recorder and a button camera to
complainant with instructions to record the oral demand made
by accused No.1. On 27.11.2010, at 4.00 p.m. the
complainant approached accused No.1 and enquired about his
file and accused No.1 pointed out unknown person and asked
the complainant to pay Rs.1 Lakh and when the complainant
negotiated, the accused No.1 agreed for Rs.50,000/-.
Thereafter, complainant on 29.11.2010 submitted a complaint
to CW26. The complaint was registered and FIR came to be
issued and trap panchas were secured and pre trap procedure
has been followed. The complainant has also produced digital
voice recorder and button camera before CW26, wherein the
recording was there regarding demand. Then on the same day
at 4.00 p.m. the complainant along with shadow witness
approached accused No.1 and accused No.1 secured accused
No.3 who thereafter contacted accused No.4 over the cell
phone and then accused No.3 and 4 took the complainant to
vehicle parking area attached to the office of accused No.1
and there, the accused No.2 was seated in the car bearing
registration No.KA04-MG-5475 and as per instructions of
accused Nos.3 and 4, the complainant paid the amount to
accused No.2 as directed by accused No.1 to accused Nos.3
and 4. Thereafter, trap was held and the tainted amount was
recovered from accused No.2. Subsequently, the car was
subjected to a search and copy of order of Special Deputy
Commissioner to land bearing Sy.No.148 etc. were found in
the car, which were seized. The documents were seized by the
Investigating Officer and the investigating officer has recorded
the statement of the witnesses and has also obtained sanction
and submitted the charge sheet. The accused, in pursuance of
the court summons have appeared and were enlarged on bail.
They were provided with prosecution papers. The accused
No.1 filed an application under Section 239 of the Code while
accused Nos.2 to 4 moved an application under Section 227
and Section 239 of the Code for discharge.
6. After hearing, the learned Special Judge by
common order dated 09.10.2015 allowed the applications and
discharged the accused / respondents herein. Being aggrieved
by this order, this revision is filed.
7. Heard the learned counsel for the revision
petitioner / State and the learned counsels appearing for
respondents. Perused the records.
8. The learned Special Public prosecutor appearing
for Lokayukta would contend that the complainant applying for
conversion of the land is admitted and at the instance of
accused No.1, the amount was received by accused No.2 with
the assistance of accused Nos.3 and 4 and trap was
successful. He would contend that initial demand was for Rs.2
Lakhs but subsequently, it was settled for Rs.50,000/-. He
would contend that there is no relationship between accused
Nos.1 to 4 and the order of the learned Sessions Judge
disclose that he has analyzed the statement of the witnesses
recorded under Section 161 /162 as if he is dealing with the
evidence. He would also contend that the defence is
regarding work being completed by accused No.1 but the
same was not intimated to the complainant and the file was
still in custody of accused No.1, which is evident from seizure
mahazar. He would further assert that the statement of
witnesses are required to be tested during the course of the
trial and the learned Sessions Judge cannot decide the
genuineness of the statements at this stage and draw an
adverse inference regarding the veracity of the statements
straight away. He would further assert that the order of the
learned Sessions Judge would disclose that it is as if a
judgment based on evidence, after trial which is not
permissible and only prima facie case is required to be
considered. Hence, he would contend that the trial court has
committed an error in discharging the accused and hence, he
seeks interference by this court.
9. Per contra, the learned counsels for respondents
would contend that the demand itself is not established and
there was no work pending with the accused No.1 and no
recovery was made from accused No.1. It is also contended
that accused No.1 has nothing to do with accused Nos.2 to 4
and the ingredients of offence under Section 8 are not
attracted as against accused Nos.2 to 4. They would further
assert that the learned Sessions Judge is required to apply his
mind and mere suspicion is not enough and there should be a
grave suspicion. They would contend that the voice recorder is
not audible and only suspicion is not sufficient and no grave
suspicion is forthcoming and hence, they would contend that
the learned Special Judge is justified in discharging the
accused. Hence, they would contend that the order of
discharge does not call for any interference.
10. Having heard the arguments and perusing the
records now the following point would arise for my
consideration:
" Whether the order of discharge
passed by Special Judge suffers from any
perversity or arbitrariness so as to call
for any interference?"
11. The undisputed fact is that the complaint on
26.11.2010 approached the Investigating Officer and a digital
voice recorder and button camera were placed at the hands of
the complainant to ascertain the genuineness of the allegation
made regarding illegal demand. On 29.11.2010, the complaint
came to be registered and trap was laid down. No doubt, the
records disclose that the allegations were made against
accused No.1 orally by CW1, but no FIR was lodged. The
learned Special Judge all along went to the extent of observing
that the Investigating Officer without issuing FIR proceeded to
collect the evidence by handing over tape recorder to the
complainant with button camera and hence, his observation is
that his collection of evidence prior to registration of FIR is
impermissible. He placed reliance on a decision of 'LALITA
KUMARI VS. GOVERNMENT OF U.P. AND OTHERS', 2013
AIR SCW 6386, but the Hon'ble Apex Court in a decision
reported in Crl.A.No.1066/2017 [The State of Karnataka
by Lokayuktha Police Vs. Lakshmikantha S.G.] dealt
this issue and considering Lalita Kumari's case, has observed
that giving tape recorder for recording the conversation is not
for collection of evidence and it is only for ascertaining the fact
and it is also observed that the case falls under exceptions
provided under LALITA KUMARI case supra. Hence, the said
ground raised by the defence does not have any relevance.
12. Further the specific assertions made by the
prosecution is that the complainant when approached accused
No.1 there was a demand by accused No.1 and an unknown
person was present and subsequently accused No.3 was
present and he was directed by accused No.1 to collect the
amount and accused No.3 after having conversation with
accused No.4 took complainant to accused No.2 who has
received the amount. The evidence of the witnesses further
disclose that accused No.1 has signed the conversion order by
giving concurrence on 27.11.2010, but there is no evidence to
show that this fact was communicated to the complainant
when he approached accused No.1. Unless the complainant
was brought to the notice that his work being already done,
question of he getting the knowledge in this regard does not
arise at all and all along, he would be under impression that
his work is still pending. Apart from that all along, the file was
pending with accused No.1 and if at all he has cleared the file
on 27.11.2010 itself, what was his need to keep the file till
29.11.2011 is not at all forthcoming.
13. Further, the statement of CW1 discloses that
accused Nos.3 and 4 were regularly meeting accused No.1.
His evidence further discloses that the complainant had met
accused No.1 four times earlier also. Much importance was
given by the learned Special Judge to the conversion order
endorsed on 27.11.2010 by accused No.1 but there is no
evidence to show that it was brought to the notice of the
complainant and when on 29.11.2010, the complainant has
met accused No.1, he could have simply asked the
complainant to get the conversion order and there was no
need for him to direct him to pay the amount through accused
No.3 who was present in the chambers of accused No.1. The
evidence of CW10 discloses that he received file pertaining to
complainant from accused No.1 on 29.11.2010 in the evening
hours. That itself disclose that all is not well. The statements
of other witnesses also disclose that accused has also
demanded from other witnesses also, which may not be
relevant in this case. Apart from that statement of CW17
discloses that on 29.11.2010 at 4.15 p.m. accused No.2 was
sitting in the car in the premises of office of accused No.1 and
accused Nos.3 and 4 along with two others were talking to
him. What is the work of accused No.2 in the office of accused
No.1 is not at all explained.
14. The order of learned Special Judge discloses that
he has dealt each statement of the witness as if he is dealing
with the evidence of witnesses. The statement recorded by
the Investigating Officer either under Section 161 or 162 does
not have any relevance unless the concerned witness is
examined before the court and till then the statement is to be
taken as true and the prosecution case is required to be
accepted as it is.
15. The learned counsel for respondent / accused
placed reliance on a decision of Hon'ble Supreme Court in
'UNION OF INDIA VS. PRAFULLA KUMAR SAMAL &
ANR.', (1979) 3 SCC 4, 'NIRANJAN SINGH KARAM
SINGH PUNJABI ADVOCATE VS. JITENDERA BHIMRAJ
BIJJA & ORS.', AIR 1990 SC 1962, 'DILWAR BABU
KURANE VS. STATE OF MAHARASHTRA', AIR 2002 SC
564 and argued that while framing of the charge, Judge
cannot act merely as a post office but has to consider total
effect of the evidence and documents produced before the
court. There is no dispute regarding the proposition laid down
in these matters, but for framing charge, the learned
Magistrate / Special Judge is required to consider prima facie
case and there is no need to consider that it would end in
conviction alone. Hence, the said principles cannot be made
applicable to the facts and circumstances of the case in hand.
16. The learned counsel for respondent/accused
further placed reliance on a decision in 'YOGESH @ SACHIN
JAGDISH JOSHI VS. STATE OF MAHARASHTRA', (2009) 1
SCC (Cri) 51, 'STATE OF M.P. VS. SHEETLA SAHAI &
ORS.', 2009 AIR SCW 5514 and argued that if two views
equally possible and Judge is despite evidence produced
before him give rise suspicion only as distinguished from grave
suspicion, he would be fully within his right to discharge the
accused. But, in the instant case, there is material evidence,
which create suspicion regarding the conduct of the accused
No.1 and his involvement with accused Nos.2 to 4. In view of
the facts and circumstances, the principles enunciated in
above cited decisions cannot be made applicable to the facts
and circumstances of the case in hand.
17. The learned counsels for the respondents further
placed reliance on a decision reported in 'C.M.GIRISH BABU
VS. CBI, COCHIN, HIGH COURT OF KERALA' (2009) 3
SCC 779 and argued that mere recover of tainted amount
does not establish the demand and acceptance. He further
placed reliance on a decision reported in 'P.VIJAYAN VS.
STATE OF KERALA & ANR.', (2010) 2 SCC 398, wherein
again the observation regarding two views being possible and
grave suspicion is to be considered is observed but as
observed above that will not be helpful to the respondents
herein in the given facts and circumstances of the case in
hand. He has further placed reliance on a decision reported in
'L.SHANKARAMURTHY & ORS. VS. STATE BY
LOKAYUKTHA POLICE, CITY DIVSIION, BANGALORE
URBAN DIVISION, BANGALORE', (2012) 5 KAR L.J.545,
'SRI.RAMESH DESAI & ANR. VS. STATE OF KARNATAKA
BY RAICHUR LOKAYUKTA PS', 2012 (3) KCSR 1738 but
the principles enunciated in the above cited decision cannot be
made applicable to the facts and circumstances of the case in
hand, in view of the law laid down by the Apex Court reported
in Crl.A.No.1066/2017. He has further placed reliance on the
decision reported in 'ANVAR P V VS. P K BASHEER & ORS.',
(2014) 10 SCC 473 and 'HARDEEP SINGH & ANR. VS.
UNION TERRITORY OF J & K & ANR.', 2021 SCC Online J
& K 571. The principles reported in HARDEEP SINGH &
ANR. supra cannot be applied to the facts and circumstances
of the case in hand, as it is under the provisions of NDPS Act.
18. The decision of ANVAR P V supra as referred is
pertaining to furnishing of certification under Section 65B of
the Indian Evidence Act, 1872, but all these aspects are
required to be considered only during the course of the trial
but not otherwise. The learned counsel for the respondents
further placed reliance on (2008) 2 SCC 409 and argued that
registration of FIR is mandatory, but this issue has been
covered by the Hon'ble Apex Court in the decision reported in
Crl.A.No.1066/2017 supra wherein it is specifically observed
that the cases under the Prevention of corruption Act comes
under exception as referred in LALITA KUMARI supra.
Hence, the said citation cannot be made applicable to the case
on hand.
19. Much arguments have been advanced regarding
no work pending before accused No.1, but as observed above,
the file was with the custody of accused No.1 all along, though
he approved it on 26.11.2010, he sent it only on 29.11.2010
evening and it may be after getting the information of trap.
That clearly disclose that approval of the file was not made
known to the complainant. The learned counsel appearing for
Lokayukta has placed reliance on a constitutional bench
decision of the Hon'ble Apex Court in 'RAM KRISHAN AND
ANOTHER VS. STATE OF DELHI', AIR 1956 SC 476,
wherein the Hon'ble Apex Court has dealt with the provisions
of Prevention of Corruption Act, 1947 and it is held that
obtaining gratification includes acceptance of voluntary offer
also. Further in 'DHANESHWAR NARAIN SAXENA VS. THE
DELHI ADMINISTRATION', AIR (1962) SC 195, the
constitutional bench of Hon'ble Apex Court has clearly
observed that misconduct of the public servant need not be in
connection of his own official duty and hence, it clearly
discloses that there need not be pendency of official work.
Further, in the decision reported in 'DHANVANTRAI
BALWANTRAI DESAI VS. STATE OF MAHARASHTRA', AIR
1964 SC 575, the four bench of the Hon'ble Apex Court has
held that once it is shown that accused has accepted the
money, which is not the legal remuneration, presumption
must be drawn and rebuttal must be by explanation, which
must be true and not merely plausible. The said principles are
prima facie applicable to the case in hand as burden is on the
accused to rebut the said presumption and that cannot be
done by way of discharge.
20. Further, in the decision reported in 'STATE BY
KARNATAKA LOKAYUKTA, POLICE STATION,
BENGALURU VS. M.R.HIREMATH', (2019) 7 SCC 515, the
Hon'ble Apex Court has again considered the scope of
discharge and matters, which can be considered while
considering the discharge under Section 239. It is observed
that entering into the questions of evidentiary value of
material adduced by the prosecution at the stage of discharge
is impermissible and that can be only considered at the time
of the trial. Hence, it is evident that the Hon'ble Supreme
Court all along made it clear that though the prima facie case
is required to be considered for discharge and grave suspicion
is required to be looked into, but it is consistently observed
that entering into questions of evidentiary value of the
materials adduced is not permissible and that is required to be
tested only during the course of the trial. But, in the instant
case, the learned Special Judge has dealt the statement of the
each witness as if he is dealing with evidence, which is not
permissible and admittedly, the amount was recovered from
the custody of accused No.2 and the evidence prima facie
clearly establish that accused No.2 received the amount at the
instance of accused Nos.1, 3 and 4. Further, the evidence
clearly disclose that certain other files were found in the car of
accused No.2 and there is no explanation in this regard,
which were pertaining to conversion orders pertaining to
different lands. Unless accused No.2 is connected with accused
No.1, office files and orders of accused No.1 cannot be traced
in vehicle of accused No.2. There is no explanation at this
stage as to why accused No.2 was in the office premises of
accused No.1 and all these matters are to be tested only
during the course of trial and not at this preliminary stage of
framing the charge. The entire approach of the learned Special
Judge is as if he is dealing the evidence on record but not the
statements, which has resulted in miscarriage of justice.
21. The decision of the Hon'ble Apex Court in
'C.M.GIRISH BABU VS. CBI, COCHIN, HIGH COURT OF
KERALA', (2009) 3 SCC 779, cannot be made applicable to
the facts and circumstances of the case in view of the
constitutional bench decision of the Hon'ble Apex Court,
DHANVANTRAI BALWANTRAI DESAI's case referred supra
wherein it is held that when once the tainted amount is shown
to be recovered from the custody of the accused, drawing of
presumption is mandatory.
22. The learned Special Judge has failed to appreciate
any of these aspects and in a mechanical way he discharged
the accused only on the basis of analyzing the statements of
the witnesses as if the evidence was being recorded. The
learned Special Judge has exceeded his power in analyzing the
evidentiary value of the statements, which is not permissible
and prima facie there is sufficient material to frame charge,
but the learned Special Judge has erroneously discharged the
accused, which has resulted in miscarriage of justice. Hence,
the order of the learned Special Judge discharging the accused
suffers from perversity and it is arbitrary as well as erroneous
As such, the revision petition needs to be allowed. Considering
these facts and circumstances, the point under consideration
is answered in the affirmative and hence, I proceed to pass
the following:
ORDER
(i) The revision petition is allowed.
(ii) The impugned order dated 09.10.2015
passed in Spl.C.C.No.45/2011 by XXIII
Additional City Civil and Sessions Judge /
Special Judge, Bangalore Urban District is
set aside.
(iii) The Spl.C.C.No.45/2011 is restored to its
original file and the learned Special Judge
is directed to proceed to frame the charge
and dispose of the matter on merits after
the trial in accordance with law.
Sd/-
JUDGE
SS
